437 F.

3d 261

Arif AJDIN, Fatima Ajdinovska, Mirsada Ajdinovska, Saban

Ajdinovska, Alma Ajdinovska, Petitioners,
v.
BUREAU OF CITIZENSHIP AND IMMIGRATION
SERVICES, Respondent.
No. 03-40070(L).
No. 03-40071(CON).

United States Court of Appeals, Second Circuit.

Argued: January 12, 2006.
Decided: February 9, 2006.

Sunit Joshi (Sokol Braha, on the brief), Joshi & Associates, PC, New
York, NY, for Petitioners.
Dustin B. Pead, Assistant United States Attorney (Paul M. Warner,
United States Attorney for the District of Utah, on the brief), United
States Attorney's Office for the District of Utah, Salt Lake City, UT, for
Respondent.
Before: WINTER, CABRANES, and SACK, Circuit Judges.
PER CURIAM.

We consider here, inter alia, (1) whether the Board of Immigration Appeals
("BIA") abused its discretion in denying a motion to reopen removal
proceedings on the ground that petitioners' reliance on general statements
contained in a State Department report about the treatment of ethnic Albanians
in Macedonia was insufficient to make a prima facie showing of eligibility for
asylum, and (2) whether, in the circumstances presented, the BIA violated
petitioners' due process rights by taking administrative notice of country
conditions from a subsequent State Department report without affording
petitioners an opportunity for rebuttal.
Petitioners Arif Ajdin, Fatima Ajdinovska and their children Mirsada, Saban,

and Alma Ajdinovska all natives of the former Yugoslavia and citizens of
Macedonia petition this Court for review of a June 11, 2003 decision of the
Board of Immigration Appeals ("BIA") denying their motion to reopen removal
proceedings on the basis of changed country conditions. Petitioners argue that
their proceedings should have been reopened because, when adjudicating their
prior applications for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture ("CAT"), neither the Immigration
Judge ("IJ") nor the BIA had the benefit of a 2002 State Department Country
Report on Human Rights Practices in Macedonia, which describes worsening
treatment of ethnic Albanians and Turks in Macedonia between 2001 and
2002.1

"An asylum applicant may, at any time, move to reopen his case `based on
changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered if such evidence is material and was not
available and could not have been discovered or presented at the previous
hearing.'" Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005) (quoting 8
C.F.R. 1003.2(c)(3)(ii)). "To prevail on the motion, the movant must also
establish prima facie eligibility for asylum, i.e., `a realistic chance' that he will
be able to establish eligibility." Id. (quoting Guo v. Ashcroft, 386 F.3d 556,
563-64 (3d Cir.2004)).

The BIA denied petitioners' motion on the grounds that (1) "respondents did
not demonstrate that they suffered any harm in Macedonia or in the former
Yugoslavia as a result of their Albanian ethnicity," and (2) "the general
statements in the country report that was released in 2002 are inadequate to
establish a prima facie claim to asylum." BIA Order of June 11, 2003, at 1. The
BIA also took "administrative notice of the latest Department of State report,
released on March 31, 2003, which indicates that there has been some
improvement in conditions in Macedonia for Albanians." Id.

On appeal, petitioners claim that the BIA erred by (1) focusing exclusively on
past persecution and failing to consider whether petitioners have a well-founded
fear of future persecution upon returning to Macedonia; (2) holding that,
notwithstanding a 2002 State Department report, petitioners failed to make a
prima facie showing of eligibility for asylum; (3) failing to adhere to a prior
unpublished decision of the BIA that relied on the same State Department
report in granting a motion to reopen; and (4) taking administrative notice of the
2003 State Department report without affording petitioners an opportunity to
rebut the inferences drawn from that report, in violation of their due process
rights. Petitioners also seek injunctive relief on the ground that the Government
engaged in "affirmative misconduct," Rojas-Reyes v. INS, 235 F.3d 115, 126

(2d Cir.2000), by delaying the issuance of a Notice of Intent to Terminate Grant

of Asylum to petitioner Ajdin, during which time Ajdin's family members came
to the United States, thereby unnecessarily "sever[ing] their ties with their
homeland," Pet'r's' Br. at 8.
6

We review the BIA's denial of a motion to reopen for abuse of discretion. See
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). Because "the reasons for giving
deference to agency decisions on petitions for reopening . . . in other
administrative contexts apply with even greater force in the INS context," such
motions are "plainly disfavor[ed]." INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct.
904, 99 L.Ed.2d 90 (1988). Indeed, the Supreme Court has stated that a motion
to reopen BIA proceedings may be properly analogized to "a motion for a new
trial in a criminal case on the basis of newly discovered evidence, as to which
courts have uniformly held that the moving party bears a heavy burden." Id.

"An abuse of discretion may be found. . . where the Board's decision provides
no rational explanation, inexplicably departs from established policies, is
devoid of any reasoning, or contains only summary or conclusory statements;
that is to say, where the Board has acted in an arbitrary or capricious manner.'"
Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao, 265 F.3d at 93 (internal
citations omitted)).

Petitioners' first argument that the BIA erroneously found them ineligible
for asylum because they provided no evidence of past persecution lacks
merit because the BIA clearly took into account both the absence of any
evidence that they had been persecuted on account of their ethnicities as well as
petitioners' failure to demonstrate, based solely on "general statements in the
country report," that they have a well-founded fear of persecution in the future.

Petitioners' second argument that the BIA gave insufficient consideration to

a 2002 State Department report describing worsening conditions for ethnic
Albanians in Macedonia is similarly unavailing because there is no
indication that the BIA "fail[ed] to consider the country condition report
submitted" by petitioners. Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d
Cir.2005). On the contrary, the BIA clearly referred, in its decision denying
petitioners' motion to reopen, to "the country report that was released in 2002"
and found that "the general statements" contained in that report were
insufficient to support petitioners' claims of asylum. BIA Order of June 11,
2003, at 1. Moreover, the statements in the 2002 report on which petitioners
rely principally concern the persecution of a faction of ethnic Albanians
engaged in armed rebellion against the Macedonian government and do not
establish that any ethnic Albanian living in Macedonia between 2001 and 2002

has a well-founded fear of persecution, simply by virtue of his ethnic status.2

10

In its decision of October 22, 2001 denying petitioners' original appeal of the
IJ's removal order, the BIA noted that "this civil war [was] instigated by ethnic
Albanian rebels, the insurgencies are limited to some parts of the country, the
main moderate Albanian party, the DAP, is still part of the governing coalition,
and negotiations [were] taking place between the rebels and the Macedonian
government." In light of this prior explanation, the BIA's later statement in
the context of adjudicating petitioners' motion to reopen that the 2002 report
contains only "general statements," clearly conveys the BIA's view that
petitioners failed to present any particularized evidence that they will be singled
out for persecution by virtue of their status as ethnic Albanians.3 We therefore
disagree with petitioners that the BIA's decision is "devoid of any reasoning,"
Kaur, 413 F.3d at 233-34, or that it "did not provide a rational explanation or
analysis [of] the new report," Pet'r's' Br. at 18. Accordingly, we hold that the
BIA did not err in denying the motion to reopen on the basis that petitioners
failed to make a prima facie showing of well-founded fear of future
persecution.

11

Regarding petitioners' third claim that the BIA failed to adhere to one of its
prior unpublished decisions this apparent inconsistency is of no moment
because unpublished opinions of the BIA have no precedential value. Douglas
v. INS, 28 F.3d 241, 245 (2d Cir.1994). The record before us indicates that
petitioners have alleged no more than that they are part of the general
population of ethnic Albanians and that some ethnic Albanian civilians have
been mistreated in Macedonia. In the circumstances presented, we hold that the
statements in the 2002 report do not provide adequate support for petitioners'
asylum claims.

12

Finally, petitioners argue that the BIA denied them due process by taking
administrative notice of the 2003 State Department report without affording
them an opportunity to rebut the inferences drawn from that report. In Yang v.
McElroy, 277 F.3d 158, 163 n. 4 (2d Cir.2002), we held that "[i]t is well-settled
that the BIA may take administrative notice of current events bearing on an
[asylum] applicant's well-founded fear of persecution" but did not address
whether due process requires that the BIA provide petitioners with an
opportunity to rebut inferences drawn from a country report. Compare
Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) (holding that
availability of motions to reopen satisfies the due process requirement that
petitioners be allowed to rebut facts of which the BIA takes administrative
notice) and Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.1991) (same) with
de la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100 (10th Cir.1994)

(requiring that a "petitioner be given notice and an opportunity to rebut" facts of

which the BIA has taken administrative notice) and Castillo-Villagra v. INS,
972 F.2d 1017, 1029 (9th Cir.1992) (holding that "the due process clause of the
fifth amendment requires that petitioners be allowed an opportunity to rebut
officially noticed facts, particularly when . . . those facts are crucial to . . . the
outcome of the administrative proceeding").
13

In the circumstances presented, we are troubled by the BIA's decision to take

administrative notice that "there has been some improvement in conditions in
Macedonia for Albanians" for two reasons. First, while this assertion
undoubtedly concerns "current events" in Macedonia, Yang, 277 F.3d at 163 n.
4, it represents a debatable assessment of the conditions facing a particular
subgroup in Macedonia, rather than a statement of fact of the kind normally
appropriate for the taking of administrative or judicial notice. See 8 C.F.R.
1003.1(d)(3)(iv) (authorizing the BIA to take "administrative notice of
commonly known facts such as current events or the contents of official
documents"); cf. Fed.R.Evid. 201(b) ("A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known . . . or (2)
capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned."); Gutierrez-Rogue, 954 F.2d at 772
(challenging the BIA's decision to take administrative notice of a change in
government in Nicaragua). Second, where petitioners have already brought a
motion to reopen, as here, the logic of Gutierrez-Rogue and Kaczmarczyk
applies with less force because petitioners are generally not permitted to file
successive motions to reopen, see 8 C.F.R. 1003.2(c)(2), thereby limiting
their ability to rebut administratively-noticed facts in subsequent proceedings.4

14

In any event, we need not reach the issue of whether the BIA's statement that
"there has been some improvement in conditions in Macedonia for Albanians,"
BIA Order of June 11, 2003, at 1, comports with the Fifth Amendment because
it is clear that the BIA's denial of petitioners' motion to reopen did not depend
on its assertions concerning the 2003 State Department report. Rather, the
BIA's initial finding that the 2002 report did not contain enough evidence to
support a prima facie showing of asylum eligibility is sufficient to support its
denial of petitioners' motion. Because we hold that any error with regard to the
BIA's subsequent reference to the 2003 report was harmless, and because "we
can state with confidence that the IJ would adhere to his decision if we were to
remand," Xiao Ji Chen v. USDOJ, 434 F.3d 144 (2d Cir. Jan. 6, 2006), 2006
U.S.App. LEXIS 261, at *31, we deny the petition without reaching this
constitutional question.

15

Finally, petitioners contend that the Government should be enjoined from

enforcing the IJ's removal orders because it engaged in "affirmative

misconduct" by unduly delaying issuance of a Notice of Intent to Terminate
Grant of Asylum to petitioner Ajdin. See Rojas-Reyes v. INS, 235 F.3d 115, 126
(2d Cir.2000). Prior to the issuance of this Notice, petitioner Ajdinovska and
her children came to the United States based on the then-valid asylee status of
petitioner Ajdin and have since integrated into mainstream American society.
Because, upon our review of the record, we hold that the Government did not
engage in "affirmative misconduct" and because petitioners have since had
ample opportunity to challenge their removal orders, we deny their request for
injunctive relief.
CONCLUSION
In sum, we hold that
16

(1) in addition to considering whether petitioners had suffered past persecution,

the BIA properly considered whether petitioners had a well-founded fear of
future persecution;

17

(2) the BIA did not err in denying the motion to reopen inasmuch as petitioners
failed to present any particularized evidence suggesting that they will be singled
out for persecution by virtue of their status as ethnic Albanians;

18

(3) the BIA did not err in failing to adhere to one of its prior unpublished
decisions which granted a motion to reopen on the basis of the 2002 State
Department report for Macedonia;

19

(4) any error associated with the BIA's reference to a 2003 State Department
report was harmless, and therefore remand is unnecessary; and

20

(5) because the Government did not engage in "affirmative misconduct" and
because petitioners have since had ample opportunity to challenge their removal
orders, their request for injunctive relief is denied.

******
21
22

We have reviewed petitioners' remaining arguments and find them to be

without merit. Accordingly, we DENY the petition, as well as any pending
motion for a stay of removal.

Notes:
1

Petitioner Ajdin is ethnically Turkish, while the remaining petitioners are

ethnically Albanian

The 2002 State Department report states that "[a]ccording to the last census, in
1994, ethnic Albanians comprised approximately 23 percent of the
[Macedonian] population, but ethnic Albanian claims that they comprise
around 30 percent were credible."

Because petitioner Ajdin is ethnically Turkish, and the 2002 report indicates
that the "main concerns" of this subpopulation "center on the lack of Turkishlanguage education and media," [A 27], he could not, in any event, make
aprima facie showing of future persecution on account of his ethnicity.

Petitioners could nonetheless have responded to the BIA's assertion by filing a

second motion to reopen based on changed country conditions because the
limitation on successive motions to reopen does not apply where country
conditions are alleged to have changedSee 8 C.F.R. 1003.2(c)(3)(ii).
Moreover, assuming petitioners could point to an error of fact in the BIA's
statement about the conditions facing ethnic Albanians in Macedonia, they
might have filed a motion to reconsider, thereby allowing them to contest the
administratively-noticed "facts." See 8 C.F.R. 1003.2(b). Of course, the BIA's
decision to grant a motion to reopen or reconsider is purely discretionary. See
C.F.R. 1003.2(a); see also de la Llana-Castellon, 16 F.3d at 1099-1100
(concluding that the potential availability of motions to reopen does not satisfy
due process requirements in this context because the BIA's grant or denial of
such motions is discretionary).